Poma v. State

Third District Court of Appeal State of Florida

Opinion filed May 2, 2018. Not final until disposition of timely filed motion for rehearing.

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No. 3D17-737 Lower Tribunal No. 02-15560-B ________________

Diviel Poma, Appellant,

vs.

The State of Florida, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Stephen T. Millan, Judge.

Dan Hallenberg (Fort Lauderdale), for appellant.

Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.

Before EMAS, FERNANDEZ and LUCK, JJ.

PER CURIAM.

Diviel Poma, the defendant, appeals the trial court’s denial of the defendant’s 3.800(a) motion to correct illegal sentence. The defendant argues *2 several points, one of which was the failure of the trial court to have the defendant present for resentencing after it vacated two of the five counts upon which the defendant had been previously sentenced. The trial court determined that resentencing with the defendant present was not necessary because it was simply vacating the sentences on two of his counts. However, because the sentences imposed on the remaining counts were discretionary, the trial court was required to have the defendant present for resentencing with a corrected scoresheet. See Jordan v. State, 143 So. 3d 335, 338 (Fla. 2014); Fernandez v. State, 199 So. 3d 500 (Fla. 2d DCA 2016); Brown v. State, 219 So. 3d 866 (Fla. 4th DCA 2017). On remand, the trial court is free to impose the same sentence or any legal sentence. See State v. Davis, 133 So. 3d 1101, 1107 n.9 (Fla. 3d DCA 2014) (Emas, J.) (“At the new sentencing proceeding, the trial court is free to impose the same sentences it previously imposed on counts three and four.”); Sconiers v. State, 734 So. 2d 427, 428 (Fla. 3d DCA 1999) (“On remand, the trial court is free to impose the same sentence.”). We affirm in all other respects.

Affirmed in part, reversed in part, and remanded for resentencing with the defendant present before the trial court.